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The Future of Locke v. Davey

55 Pages Posted: 1 Apr 2010 Last revised: 2 Oct 2010

Cleland B. Welton II

University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Written: March 25, 2010


The Supreme Court’s decision, in Zelman v. Simmons-Harris, to uphold a voucher program allowing state funds to be diverted to sectarian schools, did not address the question whether such programs are constitutionally required to include religious institutions. Locke v. Davey had the potential to resolve this question, but a surprisingly lopsided 7-2 majority decided the case without squarely addressing it. Davey upheld Washington’s refusal to allow a student to apply a state scholarship towards a degree in “devotional theology,” and it appeared, on its face, to be limited to “the State’s interest in not funding the religious training of clergy.” Yet the Court’s asserted principle of “play in the joints” between the Establishment and Free Exercise Clauses suggested a rationale with much broader implications: A mere denial of funding does not by itself create a cognizable burden on religious practice. Davey did not make clear which line of reasoning should control, and the first two federal appellate court decisions addressing the case are in fundamental disagreement about its meaning and scope.

This Note responds to these developments for the first time, and concludes that a circumscribed version of the no-burden rationale should control Davey’s future application. The opinion’s discussion of the clergy is a red herring, because ultimately the Court found no violation of any constitutional right, meaning that the exclusion required no more than a merely “legitimate” justification. And while the Court suggested that there was no neutrality problem, it did so in such a way as to highlight the fact that neutrality is an incoherent concept unsuited to a sound understanding of the religion clauses. Furthermore, the no-burden rationale is founded on a theory – free exercise as an autonomy right – that is of a piece with our understanding of other similar rights. Of course, the state’s power is not unlimited, and the paper concludes by offering four important restrictions. This reading of Davey harmonizes the case with other Religion Clause doctrine, and protects religious liberty while allowing local governments the freedom to adapt policy to local conditions.

Suggested Citation

Welton, Cleland mname, The Future of Locke v. Davey (March 25, 2010). Virginia Law Review, Vol. 96, p. 1453, 2010. Available at SSRN:

Cleland Welton (Contact Author)

University of Virginia - School of Law, Alumnus or Degree Candidate Author ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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